1993 (1) KLT 174 (F.B.)

(R. Kumaran, Advocate, Thiruvananthapuram)

In this case, Chellamma Kamalamma v. Narayana Pillai, both the Majority and Minority views are in favour of doing away with S.17 of the Hindu Succession Act. The only difference is the point of time. While the majority view holds that those who are born on or after 1-12-1976 will be governed by S.15 of the Hindu Succession Act, the minority view holds that all those Marumakkathayee Females who expire on or after 1-12-76 will be governed by S.15 of the Hindu Succession Act.

Under Hindu Law, excepting those governed by Marumakkathayam Law, female after marriage becomes member of the Husband's family. Even in the husband's family she does not get an independent right as a sharer in the family property. Her position is only as wife of her husband in that family. This appears to be the reason why the, heirs of the husband take precedence over 'mother' under S.15 of the Hindu Succession Act. But in the case of Marumakkathayee females, they retained their position as members in the family/Tarawad of their birth. They had an independent position by themselves without depending on any male member. This necessitated S.17of the Hindu Succession Act wherein wife's heirs take precedence over the heirs of her husband.

The Marumakkathayam law is defined in S.3(1)(h) of the Hindu Succession Act. In the Nair Act and analogous acts governing the Marumakkathayees the definition given is "Marumakkathaya m means the system of inheritance in which descent is traced in the female line". The various enactments only recognize Marumakkathayam System.

Succession under Marumakkathayam law is replaced by the provisions of the Hindu Succession Act. Reference to Marumakkathayam Law in S.17 is only to clarify the position that these special provisions are applicable to persons who at the time of coming in to force of the Hindu Succession Act were governed by the Marumakkathayam Law as held in Madhavi Amma v. Kalliani Amma, 1988 (2) KLT 964 and Bhaskaran v. Kalliani, 1990 (2) KLT 749. Any other interpretation will cause injury to female Marumakkathayees who enjoyed greater right before the introduction of the Hindu Succession Act. That could never have been the intention of the legislature. After the four enactments, namely Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act and Hindu Adoption and Maintenance Act, what remained in the Marumakkathayam Law was the right by birth and unity (joint tenancy) of the tarawad property. With the coming into force of the "Kerala Hindu Family System (Abolition) Act 1975", there is no practical application of the Marumakkathayam law. But by a strained interpretation, it can be said that Marumakkathayam Law still continues. The saving of S.44of the 'Nair Act' indicates that the Act does not completely replace the Marumakkathayam Law. The repealing S.7(1) under the Joint Hindu Family System (Abolition) Act, 1975 states "Save as otherwise expressly provided in this Act, any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act". The words "Hindu Law" by definition take in the Marumakkathayam Law also. But the repeal is only ‘with respect to any matter for which provision is made in this Act'. Marumakkathayam Law as such is not repealed. In this sense it can be said that Marumakkathayam Law still continues.

When S.15 of the Hindu Succession Act is made applicable to Marumakkathayee females, there will be an anomaly in their social status as well. Hindu Succession Act is an attempt to belter the condition of females under the Hindu Law. Even after the enactment, it was found but possible to bring them on par with the male-'members. Otherwise there would not have been any necessity for a separate section as S.15 under the Hindu Succession Act. S.8 with suitable changes would have been sufficient. In the case of Marumakkathayee females, they had greater rights than those governed by the Hindu Law. It is because of this, a separate Section as S.17 was found necessary in the Hindu Succession Act. Now by doing away with S.17 and bringing the Marumakkathayee females also under S.15, the rights they enjoyed hitherto would be curtailed and they will be made to occupy an inferior position to that of men.

There is therefore a case for retaining S.17 of the Hindu Succession Act.

Section 249 of the Kerala Panchayat Raj Act, 1994 (Act 13 of 1994) -

Whether it is Constitutional?

(By S.H. Panchapakesan, I Additional Munsiff, Neyyattinkara)

A careful reading of S.249 of the Kerala Panchayat Raj Act, 1994 (Act 13 of 1994), (hereinafter called the "Act') would invite our attention to a question of general public importance involving the constitutional validity of it, to a considerable extent. S.249 of the Act deals with institution of suits against authorities of Panchayats, their officers, etc. S.249(1) says that "no suit, or other civil proceedings against a Panchayat or against the President, the Vice President or any other member, or employee thereof or against any oilier person acting under the direction of the Panchayat or any member or employee thereof for anything done or purporting to be done under this Act in its or his official capacity,-

(a) shall be instituted until the expiration of one month after notice in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the nature of the relief which he claims, has been, in the case of a Panchayat delivered or left at the office of the Panchayat and in the case of a member, employee or person as aforesaid delivered to him or left at his office or at his usual place of abode and the plaint shall in each case contain a statement that such notice has been so delivered or left; or

(b) shall be instituted, unless it is a suit for the recovery of immovable property or for the declaration of title thereto, otherwise than within six months next after the accrual of the alleged cause of action.

(2) The notice referred to in sub-s. (1), when it is intended for a Panchayat, shall be addressed to the Secretary.

(3) If any Panchayat or person to whom notice is given under sub-s. (1) tenders to the plaintiff before the proceedings is commenced and if the plaintiff does not in such proceedings require more than the amounts so tendered he shall not recover any costs incurred by him after such tender; and the plaintiff shall also pay all costs incurred by the Panchayat after such tender".

Hence, issuance of one month's prior notice is a mandatory requirement for institution of suits against authorities of Panchayats and their officers. Courts are bound to reject plaint in case, a statement with regard to the statutory notice is absent in it.

Now, the important question to be looked into is whether the Panchayat Raj Institutions are having a better immunity than that of the Central/State Government in litigations and judicial proceedings.

Part IV of the Code of Civil Procedure (Act V of 1908), hereinafter called the Code deals with suits by or against the Government or public officers in their official capacity. S.80(1) of the Code bars suits and other judicial proceedings against the Government or against a public office in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of-

But, sub-s. (2) of S.80 of the Code says that in a suit to obtain an urgent or immediate relief against the Government or any public officer, in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the court, without serving any notice as required by sub-s. (1); but the court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit.

Sub-s. (2) of S.80 of the Code was inserted by way of the amendment (Act No.104 of 1976). For such an amendment in the code, the then Joint Committee on Legislation felt that some relaxation of the provisions of S. 80 is necessary, so that a person may not be deprived of the opportunity of obtaining an urgent or immediate relief, where such relief is essential. In the above circumstances, the joint committee felt that S, 80 of the Code should provide to the institution of a suit for obtaining an urgent or immediate relief against the Government or any public officer in respect of any act purporting to have been done by such public officer in his official capacity without serving any statutory notice. However, it has been specified that the Court should not grant any relief except after giving to the Government or the public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit. (The reasonable time, as above, has been held as 30 days (1996 (1) KLT 190)).

But under the Panchayat Raj Act, there is a total bar with regard to maintainability of suits, in case of want of statutory notice. The courts shall get jurisdiction to take cognizance on such suits only after expiry of the statutory period of 30 days from the date of delivery of notice. There is no provision in the Act for institution of a suit for obtaining an urgent or immediate relief against the Panchayats. But there are innumerable instances, which would necessitate interference of judiciary in our day-today life.

The Act confers ever so many powers on the Panchayats and their officers as enumerated under Chapter XV. S.166 of the Act deals with the mandatory functions of village panchayats. There are 32 items of mandatory functions and some other items of functions attended by Village Panchayats included in the 3rd Schedule of the Act. The item Nos.4 and 5 in the 3rd Schedule deal with maintenance of village roads and construction and maintenance of new village roads. It includes organising voluntary surrender of lands for new roads and for widening of the existing roads.

All our Panchayat committees have been constituted on the basis of party politics. From our experience, we cannot reasonably believe that such committees would always take legal or proper decisions alone. On the other hand, there would always be political and other considerations beneath such decisions that they may take. If a panchayat committee resolves to construct a new road leading to the house of the President or one of its members by raping 2 cents of another (it may be his only one immovable property in which his house is situated) without his knowledge or consent, how could he get justice, if doors of the Courts are closed towards him merely on the ground that he did not issue a notice to the Panchayat as per the statute"? If he sends notice and thereby waits for the statutory period, indeed in the meanwhile, his house would be wiped out from the scene, and the property be macadamised for plying vehicles, if it is held that such an aggrieved person is not end tied to get an order of temporary injunction, at least against the evil acts of vested interests acting under the veil of panchayats, for want of notice, what would be his redressal.

Section 123 of the old Panchayats Act, (Act 32 of 1960) deals with notice of action against Panchayat etc. Though there was also statutory bar in initiating legal proceedings against Panchayats without notice, a relief of injunction was exempted from statutory notice. In other words, as far as a suit for injunction simplicitor is concerned, prior notice was not mandatory. But in the new Act, such an exemption with regard to injunction suits is not found provided with.

In cases of Revenue Recovery proceedings under the Kerala Revenue Recovery Act (Act 15 of 1968), there is a general bar to jurisdiction of civil courts. But, as per the proviso to S.72 of the Revenue Recovery Act, it is stipulated that a suit may be brought in a civil court in respect of any such question on the ground of fraud. In other words, proceedings under the Revenue Recovery Act can be challenged before Civil Courts, in case, fraud is specifically alleged. Likewise, at least such an exemption ought to have been provided with in the new Panchayat Raj Act, with regard to general bar of jurisdiction of civil courts in cases wherein fraud is specifically alleged by a litigant against the decisions or acts of Panchayats or its officials. (At least it can be at the risk of such litigants).

Suppose, a person conducted a grocery after obtaining licence from the local authority. But, a successor in the office of the executive authority of that Panchayat held that the licence issued by his predecessor in office would not bind on him. He issued a notice (after affixing his office seal) to the owner of the shop and thereby directed him to close down his trade. In such a case, if the owner of the shop has no access to a court of law for safeguarding his valuable right of carrying on business merely on a technical ground of notice, what would be the quantum of injustice that is meted out to him!

The rights which are guaranteed by Arts. 19 & 21 of our Constitution are guaranteed rights against State action. In case of violation of such rights by private individuals, the person aggrieved has legal right to seek remedies under the general law. But, where the claim of such an infringer is supported by a Slate Act, executive or legislature, the person aggrieved may challenge the constitutionality of the Act which supports the private claim. While a right created by Statute may be taken away by, another statute, a fundamental eight guaranteed by the Constitution cannot be taken away by statute (Pannalal v. Union of India AIR 1957 SC 397). Art.13(2) directs that the State shall not make any law which takes away or abridges the rights conferred by the Part III of our Constitution and any law made in contravention of the above clause shall, to the extent of such inconsistency, be void. The Kerala Panchayat Raj Act, 1994, is a law as defined under Art.13(3)(a). Imposing unreasonable restrictions on an aggrieved person's right to approach Court of law, especially in instances of flagrant injustice done by the Panchayats and its officials with mala fide intentions, appears to be unconstitutional and void. Hope that the kind attention of the concerned would reflect upon this issue.

'HIPPY-HALLET'

(V.K. Babu Prakash, Judl. I Class Magistrate-Ill, Thiruvananthapuram)

The title of the article is gathered from one of the land mark cases Jones v. National Coal Board decided by His Lordship Alfred Thompson Denning. His Lordship is illustriously known in his abbreviated name, Lord Denning. Denning is the family's name. The case stated above is narrated by his Lordship in his book 'Due process of Law' published by Butterworths.

Lord Denning was retired as the Master of Rolls. Who is the master of rolls? In India we do not have such a title either in the High Courts or in the Supreme Court.

The Master of Rolls is the Presiding head of the civil division of the court of appeal. The criminal division is presided over by the Lord Chief Justice. The court of the master of rolls is the court of record.

Lord Denning was retired in 1982, after along judicial career of Thirty eight cars. He had been the master of rolls for twenty years.

Precisely speaking, Lord Denning did not retire attaining his superannuation. But retired on voluntary motion of his own due to some unhappy incidents.

He had delivered a judgment in ‘Bristol riot case' which had a black history in his career as master of rolls. That was a case in which Lord Denning had to make some observations against some black jury members.

Trial by jury dominated the administration of justice in England upto the end of 19th century. Jurors were selected from the common people. They are not selected at random. They were chosen from a select band of the middle classes. They were responsible heads of households, who came without any pay, not so much even as their expenses. Never was any one of them challenged. Each was worthy representative of the reasonable man so well respected by the law.

The observation of Lord Denning resulted a hue and cry among the black community. They said it was an observation against the black as a race. The Times, Observer, and Guardian the mighty press of England gave vide exaltations against Lord Denning.

The period was a turmoil in his mind. His Lordship never foresaw the implications and its after math. The sad melancholy in his mind precipitated from the observation, later his Lordship chalks out in the book "The closing chapter'. It was written after the retirement. Lord Denning confesses in it that he had never intended the implications as had been promulgated by the press as well as the black community.

After deep thinking and burning the midnight soil in his candle Lordship came out with his decision to spill the beans. He decided to retire voluntarily. The decision was sent to the Lord Chancellor. Lord Chancellor accepted it but proposed a date. Thus Lord Denning retired on 29-9-1982 after his eloquent and exquisite career as the Master of Rolls.

Now come to the case decided by Lord Denning as the appeal lord which has given rise to the tide of the article.

There was a judge named Sir Hugh Imbert Periaim Hallet in the county court. The initials of his long name gave rise to the nickname 'Hippy Hallet'. Before his elevation he took start as a junior at the Bar. Later he got silk in his early career which made him to appear in the privy council. Lord Maugham appreciated his talent so he became the judge.

There was one difficulty with Sir Hallet. He talked too much. He was a sort of loquacious. He got interested in every case which came up before him, so that he divided deep into every details of it. He asked too many questions. Of witnesses in the box. Of counsel in their submissions.

One day, a widow, named Mrs. Jones knocked at his court. She had a brief. That, the roof of a coal-mine had fallen in. The minor child of the widow crushed under it. She came with a writ for damages. The case is known as Jones v. National Coal Board.

During the trial Sir Hallet let off his enthusiasm. He made cross cuts in the smooth flow of examinations and submissions with interruptions one after another. At last the widow's claim was rejected. Probably the National Coal Board would be happy since the plaintiff was non suited with, their cost.

Mrs. Jones preferred appeal. Curiously the board also made a cross appeal. One may wonder what for? The appeal and cross appeal con fined on a common point. That, the Judge's interruptions' were like putting the cart before the running horse, or the interruptions prevented a fair trial.

Eminent jurists came on each side. For the widow Mr. Gerald Gardiner who later became the Lord Chancellor. He was a shrewd lawyer famous for his clarity in submissions. For the respondent board, Mr. Edmund Davies who later became Lord Edmund Davies. He was also a resourceful lawyer. Arguments took at length.

Lord Denning delivered the judgment for the whole court. It laid land mark propositions and self restraints which the judges should keep in the bench.

His lordship said "we much regret that it has fallen to our lot to consider such a complaint against one of her Majesty's judges. No one can doubt that the judge, in intervening as he did, was actuated by best motives. He was anxious to-understand the details and asked questions to get them clear in his mind. All those are worthy motives on which judges daily intervene in the conduct of cases, and have done for centuries.

Nevertheless, we are quite clear that the interventions taken together, were far more than they should have been. In the system of trial, the judge sits to hear and determine the issues-raised, not to conduct an investigation or examination on behalf of society at large. However a judge is not a mere umpire to answer the question "How's that". His task is to find out the truth to do justice.

Lord Denning quotes Lord Eldon to say' that truth is best discovered by powerful statements on both sides of the question'.

Again quotes, Lord Greene the master of rolls to say that justice is best done by a judge who holds the balance between the contending parties without himself taking part in it. If a judge himself conducts examinations, he descends into the arena and is liable to have his vision clouded by the dust of conflict.

Yes, he must keep his vision unclouded. It is all very well to point justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth and the less dust there is about the better. Let the advocates one after another put the weights into the scales. But the judges at the end decides which way the balance tilts.

If a judge goes beyond the limit he dropes the mantle of a judge and assumes the robe of an advocate.

To quote Francis Becon the Lord Chancellor, patience and gravity of hearing is an essential part of justice, and on over speaking judge is no well turned symbol.

On the conclusion, Lord Denning allowed both the appeal and cross appeal and granted a New Trial.

But the interesting part is that Sir Hallet resigned his judgeship soon after the verdict.

By the decision Lord Denning reminds the lesson.' Beware too much intervention from the bench'.

A Note on 'Velukutty Achary - v. - H.M.Ltd. :

1992 (2) K.L.T. 622'

(By H.B. Shenoy & Ashok B. Shenoy, Advocates, Ernakulam)

Who is an "employee" under the Payment of Gratuity Act 1972? The Kerala High Court propounds its dicta on this particular question in the recent decision in "Velukutty Achary v. H.M. Ltd. (1992 (2) KLT 622)", rendered by a Division Bench. Here, the Hon'ble Court held that a person must be employed as an employee as stated in S.2(e) upon a particular salary per mensem. It also went on to say that a person is an ‘employee' who is supposed to work under the terms of the employment continuously from day to day and further held that a person who is offered work whenever available is not an "employee". In short, according to the dicta in Velukutty Achary's case (supra), any person to be an "employee" under the Payment of Gratuity Act, 1972 must be employed on a monthly salary and he must be supposed to work continuously from day to day. Thereby, the temporary employees and casual employees would not fall within the ambit of the term "employee" under the Act and they will not be able to claim gratuity. This view of the Kerala High Court seems rather confusing and inconsistent with the express provisions of the Act.

Admittedly, S.2(e) of the Act defines the term "employee" for the purpose of the Act. No doubt, a person should be an "employee" as defined thereunder to claim the gratuity under the Act. Therefore, the answer to the question as to who is an employee, is to be gathered on an interpretation of S.2(e). S.2(e) of the Act reads as under.

"Employee means any person (other than an apprentice) employed on wages, not exceeding two thousand and live hundred rupees per mensum, or such higher amount as the Central Government may, having regard to the general level of wages, by notification specify, in any establishment, factory, mine, oilfield, plantation, railway company or shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity."

From the above words it can be seen that the definition of "employee" in the section falls in two main parts. The first part of the definition gives the statutory meaning of the "employee". This part of the definition determines an employee by reference to a person (other than an apprentice) employed on wages, not exceeding two thousand and five hundred rupees per mensum or such higher amount as the Central Government may specify, in any establishment, factory, mine, oilfield, plantation, railway company or. shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work. This part determines who an "employee" means. For that one should be employed on wages; wages should not exceed the specified amount; and must be employed in any of the specified nature of work in any establishment, factory, mine, oilfield, plantation, railway company or shop. This is the signification or denotation of the word or what the word, "employee" denotes. The second part of the definition specifically excludes the categories of persons who hold a post under the Central Government or a State Government governed by any other Act or rules providing for payment of gratuity. No doubt, the first part of the definition brings in the concept of contract of employment between the employer of an industrial establishment and the employee. Unless there is a contract of employment between the two or, in other words there is a relationship of employer and employee between them, the definition "employee" will not come into play. But once the relationship of employment is established, its duration would not be material. Even a temporary or casual employee would fall within the ambit of this part of the definition of employee. The definition does not state that a person, in order to be employed should be employed in a substantive capacity or continuously from day to day. Nowhere in the Section or any provisions of the Act is it expressly or impliedly stated that a person should be employed continuously from day to day or should be employed as permanent employee, to be an "employee" thereunder and to claim the gratuity under the Act. There is no warrant whatever to restrict the scope of the term "employee" by deliberately reading into it a limitation that the person to be an employee should be employed continuously from day to day. Such an interpretation which would amount to addition into the Section, words which are not there and which are not contemplated by the legislature has to be avoided particularly in the matter of construction of a piece of social legislation intended to confer retiral benefits in favour of employees. In fact, a reading of S.2A(2) of the Act would lead us to the conclusion that the legislature intended to bring under the purview of the Act those employees also who are not required to work continuously from day to day for the entire 365 days in a year viz., the temporary and casual employees. S.2A(2) brings in a deeming provision whereby an employee who is not employed for the entire 365 days and who is actually employed during a period of 12 calendar months only for 190 days in a mine or in an establishment which works for less than 6 days in a week or 240 days in any other establishments, is deemed to have put in one completed years of service. This deeming provision would clearly show that the legislature intended to bring under the ambit of the Act, those employees also who are not employed continuously from day to day. The thrust of this deeming provision is that an employee need not be in employment or service under the employer continuously from day to day for a whole period of 12 months and that appears to be the plain meaning without gloss from any source. In short, it is not essential that a person should be supposed to work continuously from day to day under an employer, so as to be an "employee" under the Payment of Gratuity Act, 1972. Any "employee" irrespective of the fact whether he is temporary or casual or employed intermittently, would be entitled to gratuity under the Payment of Gratuity Act, provided, of course he satisfies the conditions in S.4 read with S.2A. It can be seen that there is not even a slightest implication either in the definition clause or other provisions of the Act, to support the contrary view upheld by the Hon'ble Kerala High Court in Velukutty Achary's case (supra). In fact, the very implication in S.2A(2) seems to contradict the dicta of the Hon'ble High Court. In short, the view upheld by the High Court that a person who is supposed to work under the terms of the employment continuously from day to day alone is an "employee", it is respectfully submitted, is incorrect.

Further, the Hon'ble High Court seems to have gone wrong w line holding that a person must be employed as an employee as slated in S.2(e) upon a particular salary per mensum. Of course, no doubt, the person should be an employee as stated in S. 2(e). Also, there can be no doubt that he should be employed on wages. But should he be employed on monthly wages itself to be an "employee" under S.2(e). Does the Section insist so? The Hon'ble High Court has answered it in the affirmative on the strength of the words, "per mensem" appearing in the Section.

Let us examine the definition clause. The opening words, ".......... any person (other than an apprentice) employed on wages ..." reveal that the person should be employed on wages. Thus, once the employment of a person on wages is established, the definition clause strikes into action. However, it is not material that the wages should be monthly based. The basis or the system of payment of wages does not find a place in the definition. It does not contemplate that the wages should be on monthly basis or weekly basis or daily basis or piece rated basis. Of course, it is true that it lays down a limitation as to the quantum of wages payable at Rs.2,500/- per mensem or such higher amount as the Central Government may specify. That is brought in only to exclude employees drawing higher amount of wages. The exclusionary words, "...... not exceeding two thousand and five hundred rupees per mensem,..." brought in' for the aforesaid purpose, does not seem to give even a slightest implication that the employee should be employed on monthly wages. It escaped the attention of the Hon'ble High Court that the opening words and exclusionary words form two distinct parts. Here it is pertinent to note the presence of a comma just after the word, "wages" and just before the exclusionary words begin. It is also worth considering that the first proviso to S.4(2) of the Act lays down the mode of calculating the daily wages of a piece-rated employee for the purpose of calculating the gratuity payable to him the rounder. This proviso which also escaped the attention of the Hon'ble High Court, no doubt, leads to an irresistible conclusion that all persons employed on wages irrespective of whether they are monthly rated, daily rated, weekly rated or piece-rated are "employees" under the Act. As could be gathered from S.2(e), it is not necessary that a person should be employed on monthly wages itself to be an "employee" thereunder. He could be a monthly rated, daily rated, weekly rated or piece-rated employee. The only restriction is that his wages should not exceed Rs.2,500/- per mensem or such higher amount as may be notified. By holding otherwise, the Hon'ble High Court has legislated and amended the opening words,"... employed on wages ...." to "employed on monthly wages".

Though the legal points upheld by the Hon’ble Kerala High Court in Velukutty Achary's case (supra) does not enunciate the correct position of law, the dismissal of the appeal thereto seems to be right on the facts of the case. The Hon'ble High Court went wrong in holding that Shri. Velukutty Achary was not an employee on the pretext that he was called by the employer only whenever there is work and paid wages; that he is not subject to any contract of employment and therefore he cannot comeunder S.2-A(1). Simply because he was called and employed intermittently by the employer only whenever there is work would not result in his ceasing to be an employee. In such case also there is contract of employment for a fixed tenure or period. No doubt, he may be a casual or temporary employee. But still he is an "employee" under S.2(c) which does not make any distinction between temporary, casual or permanent employees and thereby he would also be entitled to the benefit of S.2-A of the Act. However, from the facts it can be seen that Shri Velukutty did not satisfy the conditions in S.2-A read with S.4 of .the Act inasmuch as he does not have five years continuous, service under the employer as was rightly held by the Controlling Authority and Appellate Authority . under the Act and it is on this count, the appeal deserved to be dismissed. In short, the diet as laid down on the legal points in the instant case, it is respectfully submitted, require reconsideration.

Delay in Filing of Application to Set Aside Arbitration Award - Is Condonable?

(By M/s. H.B. Shenoy & Ashok B. Shenoy, Advocates, Ernakulam)

It seems to be a prevalent view in the field of Arbitration Law that an Award can be set aside by the court upon an application under S. 33 of the Arbitration Act, 1940 only if the application thereof is filed within 30 days from the date of service of notice of the filing of Award and in cases where such application is filed beyond 30 days, the v Court has no jurisdiction to condone the delay by invoking S. 5 of the Limitation Act, 1963. ThisviewissupportedbyaDivisionBenchdictaoftheKeralaHighCourtin5tote of Kerala v. Sivan Pillai: 1997 (1) KLT 556. The reasoning given by Their Lordships to uphold this view is that S. 5 of the Limitation Act 1963does not apply to an application seeking to set aside an Arbitration Award. This view seems to be inconsistent with the express words employed in S. 5 of the Limitation Act, 1963.

No doubt, the general law as laid down in S. 3(1) of the Limitation Act 1963 is that every suit instituted, appeal preferred or application made after the period prescribed in First Schedule of the Act shall be dismissed. However, this general rule is subject to the exception contained in S. 5 of the Limitation Act 1963 which expressly provide for the extension of time in the case of any appeal or any application other than those under O. 21 of the Code of Civil Procedure, if the appellant or applicant satisfies the Court that he had "sufficient cause" for not filing the proceeding within the period prescribed. In other words, the Court is given the power to condone the delay and admit any appeal or any application notwithstanding having it filed after the expiry of the prescribed period of limitation. S. 5 of the Limitation Act 1963 reads as:'

"Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the-prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."

From the express words employed in the above statutory provision, it can be seen that it applies to: (a) appeals; and (b) applications other than those under O.21 of the Code of Civil Procedure.

Compared to the aforesaid statutory law now prevailing under S. 5 of the Limitation Act 1%3; the correspondent old statutory provision contained in S. 5 of the old Limitation Act 1908 covered, besides appeals, any applications for review of judgments, applications for leave to appeal and applications to which the section was made applicable by or under any enactment for the time being in force. This would be I amplified on a reading of S. 5 of the old Limitation Act 1908 which reads as:

"Any appeal or application for a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefore, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."

The old statutory provision restricted and confined its application to a very restricted category of applications expressly specified therein, only 3 in numbers. As against that, the present statutory provision in S. 5 of Limitation Act 1963 has been considerably enlarged in its scope. The present section, as would be revealed by the express words therein, automatically applies to all applications except those under O. 21 of the Code of Civil Procedure. From the express words therein, it can be safely concluded that while under the old Limitation Act 1908 power for condonation of delay upon sufficient cause being shown was not available to all applications; under the prevalent Limitation Act 1963 such power of condonation of delay is available in cases of all applications. No doubt, an application to set aside an award under S. 33 of the Arbitration Act 1940 did not fall within the purview of S. 5 of the old Limitation Act 1908, for none of the enactments including the Arbitration Act did not provide that the powers contained in S. 5 of the Limitation Act 1908 would apply to such an application. However under the new Limitation Act 1963 when the scope and ambit was widely enlarged and all applications fall within the purview of S. 5 of the new Limitation Act. When that be so under the new Act, S. 5 would be definitely applicable to an application seeking to set aside an award under S, 33 of the Arbitration Act. In this context, it is worth noting that under the Limitation Act, in the First Schedule wherein the period of Limitation for such proceeding is specified, the proceedings has been classified into three divisions, namely 'Suits', 'Appeals' and 'Applications'. And the statutory schedule thereof classifies an Application to set aside an arbitration Award, as an application under the third division. The Act thereof has thus expressly construed and considered it purely as an application and a different nature, that of a suit can never be showered on it for the purpose of considering the application of S. 5 to it.

The Division Bench of the Kerala High Court omitted to take notice of above statutory provision contained in S. 5 of the Limitation Act 1963 while rendering its decision in State of Kerala v. Sivan Pillai : 1997 (1) KLT 556. Intact the Division Bench had relied on the law laid down by the Supreme Court in Madanlal v. Sunder Lai: AIR 1967 SC 1233: by the Bombay High Court in Hastimal Dalichand Bara v. Hiralal Motichand Mutha : (AIR 1954 Bom 242) and by Nagpur High Court in Kawalsingh Akbar v. Baldeosingh Akbar : (AIR 1957 Nagpur 57); which are actually precedents on the old statutory law contained in the S. 5 of the Limitation Act 1908 which has been later on superceded and enlarged in scope by S. 5 of the new Limitation Act 1963. Admittedly S. 5 of the old Limitation was not made applicable to applications under S. 33 of the Arbitration Act. This underwent change and a new S.5 under Limitation Act 1963 brought within its ambit all applications including applications under S. 33 of the Arbitration Act. However, this most important aspect with regard to change of statutory law since the aforesaid 3 prior precedents, was unfortunately not brought to the notice of the Division Bench of the Kerala High Court.

On an over all view S. 5 of the new Limitation Act expressly lays down that any applications would fall within its ambit and there seems to be not even a slightest implication in any of the provisions of the Limitation Act 1963 to exclude an application under S. 33 of the Arbitration Act from the purview of S. 5 of the Limitation Act 1963. When that is so, delay in filing of an application to set aside an Arbitration Award, would be condonable in exercise of the powers under S. 5 of the Limitation Act 1963; even if the application thereof is filed beyond 30 days from the date of service of notice of the filing of the Award. The Division Bench dicta in State of Kerala v. Sivan Pillai : 1997 (1) KLT 556, it is respectfully submitted does not enunciate the correct view and it requires re-consideration.